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Movsesian in First Things Today

In First Things today, I have an essay on President Biden’s recent recognition of the Armenian Genocide of 1915–and why that recognition hasn’t translated into practical help for Armenians suffering ethnic cleansing today. Here’s an excerpt:

Recognition of the Armenian Genocide, suddenly, has become one of the few things on which Democrats and Republicans agree. It would be good if the new willingness to speak forthrightly about history translated into practical help for Armenians facing ethnic cleansing today. That, unfortunately, seems a different story. Shortly after his statement on the genocide, President Biden made another decision that indicates that, when it comes to present-day aggression against Armenia, the United States is prepared to look the other way. . . .

Turkey and Azerbaijan would like very much, in Erdoğan’s words last year, to “fulfill the mission of our grandfathers in the Caucasus”—to remove the obstacle that Christian Armenians place in the way of a unified, pan-Turkish mega-state stretching from Istanbul to Central Asia. American leverage could make Turkey and Azerbaijan think twice about pursuing this strategy. But America’s foreign policy establishment continues to see Armenia as a Russian proxy and therefore undeserving of much assistance. Indeed, neoconservatives have cheered Azerbaijan’s aggression against Armenia as a way to contain Russia and, secondarily, Iran. 

This assessment of the situation is wrong and unfair. Surrounded by enemies who would like to make it disappear, Armenia has little choice but to make alliances where it can. Besides, the theory that helping Azerbaijan would weaken Russia has proven spectacularly wrong. As a result of the war, Russia now has military bases both in Armenia and Azerbaijan and wields more influence in the Caucasus than it did before. As for Iran, it voiced its support for Azerbaijan during the war and now hopes to receive Azeri contracts to help with the rebuilding. 

The full essay is available here.

Posted on by Mark Movsesian

Conversations: Rod Dreher

rod-dreher

Rod Dreher is a prolific journalist and author, and a senior editor at The American Conservative. He comments regularly on American culture, politics, and religion, and has written three widely-discussed books: Crunchy Cons (2006), The Little Way of Ruthie Leming (2013), and The Benedict Option (2017). His blog at The American Conservative gets about a million page views a month and draws followers from the left and the right. As a recent New Yorker profile explains, Rod has such a wide readership because he covers a wealth of interesting topics, in depth, and with valuable insight: “Because Dreher is at once spiritually and intellectually restless, [his] blog has become a destination for the ideologically bi-curious.”

Recently, Rod, who is a participant in our Tradition Project, agreed to answer some questions about his new, best-selling book, The Benedict Option. The book argues that traditional Christians need to return to older, more intentional ways of living in order to thrive in a post-Christian culture. In our wide-ranging interview, Rod talks about why he thinks the Benedict Option is so necessary and why it isn’t just for monks and hermits. He discusses examples like classical Christian schooling and Christian centers at secular universities. He addresses the paradox of traditionalism in contemporary life, responds to progressive criticism, and explains the danger that “Technological Man” poses for traditional Christianity.

Movsesian: Rod, let’s begin by summarizing the main theme of your book. As I understand it, you argue that traditionalist, small-o orthodox Christians need to repurpose older, intentional ways of Christian living for our contemporary age. To take the “Benedict Option” means to establish tighter networks, communities, and institutions that will allow American Christians to survive in our post-Christian culture. Is that about right? Why do you think this option is necessary for American Christians today?

Dreher: Yes, that’s it. This is necessary because of the nature of postmodern culture, more on which in a second. In the book, I talk about a couple of social facts that so far, few if any critics have addressed head on. First is the fact that enormous numbers of Americans are leaving institutional Christianity. This has been shown repeatedly in recent years by reputable social scientists. In fact, back in 2010, Robert Putnam of Harvard and Notre Dame’s David E. Campbell said that if it weren’t for the heavy influx of Latino immigrants, the US Catholic Church would be hemorrhaging adherents at the same rate as Mainline Protestant churches. The numbers are not getting better for any of us. Last year, Mark Chaves and David Voas, two of the top sociologists of religion, published a paper analyzing social science data from the last decade or so, and concluding that the US is no longer a counterexample to the “secularization thesis” – that is, the idea that as modernity progresses, religion withers. It’s not true elsewhere in the world, but it was true in the West, with the notable exception of America. But we are now finally on the same steady downward slide that Europe pioneered.

And overwhelming numbers of young adults who still identify as Christians hold a nominal faith that has only scant connection to historic Christian orthodoxy. Their true faith is something the Notre Dame sociologist Christian Smith calls “Moralistic Therapeutic Deism” – basically a shallow, self-centered, feel-good, emotion-driven faith that’s all about being nice and feeling happy with oneself. Smith and his colleagues do their survey work on Millennials, but he has said he is confident that quite a few older American Christians hold the same vapid faith. I concur.

The point is that American Christianity is so shallowly rooted that it will not be able to withstand the strong currents of post-Christian culture. Anecdotally, in my travels around the country, especially to Christian colleges, I am hearing the same thing. One Evangelical professor at a conservative Christian college told me that these kids are all nice and big-hearted, but they come to college knowing next to nothing about Christianity, with no formation at all. The main problem is not these kids, but their parents, their churches, and their Christian schools. Few people want to face the reality of this spiritual and cultural crisis, and to make the kinds of radical changes that are going to be necessary if the faith is going to survive into the coming generations.

American Christians simply cannot imagine that the faith might not be here for their descendants. The history of Europe in the 20th century, especially after the Second World War, ought to disabuse them of that fallacy. I was quite taken by a 2015 book by the historian Edward J. Watts, titled “The Final Pagan Generation.” It’s a short history of Roman elites born just before Constantine’s conversion in the fourth century. They lived through the collapse of paganism, which had been the religion of the Empire for many centuries. It all happened in a single century. Watts shows that these men – intelligent, cultured men – had no idea what was happening around them. They could not imagine that the world that formed them could dissolve so quickly. But it happened. I think it’s happening to us Christians today.

Movsesian: Of course, to call it the “Benedict Option” is to conjure up an image of a monastic retreat from the world—something suggested, as well, by the book’s cover photo of Mount St. Michel. And some Christian critics have taken to you task for that. But that isn’t quite what you mean, is it? You’re not calling on all Christians to live as monastics. Could you explain? Is the Benedict Option only for spiritual virtuosos? What about regular people who live in the world but would like a deeper Christian life?

Dreher: No, I’m not at all encouraging Christians to run for the hills and live like monks. Rather, I’m saying that all of us believers have to live lives of much greater spiritual discipline, with much thicker ties to our local churches and Christian communities. If we don’t, we are not going to make it as Christians through this Dark Age upon us. That’s not just an anxious American journalist saying this; Father Cassian Folsom, the former prior of the Benedictine monastery in Norcia, the saint’s hometown, told me exactly that when I first met him several years ago. This is not a game.

I call this project the Benedict Option after the philosopher Alasdair MacIntyre’s famous final paragraph in “After Virtue,” in which he recalled the example of St. Benedict, leaving the ruins of imperial Rome to found a monastic order. MacIntyre said that today, we await “a new – and doubtless very different – St. Benedict” to help those who wish to live out the traditional virtues create resilient communities capable of doing this amid the chaos and barbarism of our own time. In my book, I ask what would a new and very different St. Benedict look like today? What would he tell us?

We lay Christians – Catholic, Protestant, and Eastern Orthodox – have a lot to learn from the Benedictine tradition. In the book, I talk about certain ways of thinking and living that the Benedictines have from the early sixth century Rule of St. Benedict that we can Read more

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Conversations: Ashley Berner

berner2015_3_pyramidAshley Berner (left) is an assistant professor and Deputy Director of the Institute for Education Policy at the Johns Hopkins School of Education, and a past guest blogger here at the Law and Religion Forum. Last month, Palgrave Macmillan released her new book, Pluralism and American Education: No One Way to School, in which she advocates a new approach to education in America. It’s a great book, readable and thoughtful. She agreed to answer a few questions about the book, and about her approach, “educational pluralism,” as part of our Conversations series. Our interview covers topics like the costs of state-sponsored uniformity in education, the proper place of religious schools in a pluralist system, and why Ashley thinks of her approach as a middle way. Thanks, Ashley!

L&R Forum: You argue that American education took a wrong turn in the 19th Century, when it moved from a pluralist model to one of state-sponsored uniformity. What’s the history? Why is it particularly relevant for people who study law and religion in America?

Berner: Until the end of the 19th century, school systems in the United States funded a variety of schools – from Jewish and Congregationalist to Catholic and Presbyterian. This was the norm amongst democratic nations, and continues to be. The Netherlands currently funds 36 different types of schools on equal footing; the UK, most Canadian provinces, Sweden, and Singapore (to name a few) support diverse schools as a matter of principle.

In our country, the vast number of 19th century Catholic immigrants threatened the majority Protestant culture and sparked nativist activism at elite and grassroots levels. The Ku Klux Klan and post-Civil War Republicans shared a common resistance to Catholic education. Nativists influenced both Congressional and also legislative agenda. Perhaps the most concrete consequence was the creation of so-called Blaine amendments, named for the U.S. Speaker of the House who tried, and failed, to pass an amendment to the federal constitution that barred funding to religious schools. Thirty-six states passed their own constitutional amendments to this effect. Depending upon how they are constructed, the Blaine amendments seriously impede educational pluralism today. A Blaine amendment case is up before the Court this term; it will be interesting to see what the Court decides.

L&R Forum: You argue for “educational pluralism,” which you say is a “middle path” between state-sponsored uniformity and a libertarian, privatized model. Could you explain what you mean? How would educational pluralism work in practice?

Berner: Educational pluralism asks us to de-couple funding schools and operating schools. Thus in the Netherlands, only 30% of students attend state-funded, state-operated schools, while the rest attend schools that are funded and regulated by the state but Read more

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Conversations: R.R. Reno

r.r.-reno-web_1R.R. “Rusty” Reno (left) is the editor of First Things and an influential commentator on religion in American public life. He has written an interesting and provocative new book, Resurrecting the Idea of a Christian Society (Regnery 2016), in which he argues for reviving Christianity’s role in American society. The book doesn’t call for a theocracy, but a return to Christian ideas and commitments which, Reno says, can prevent a slide into greater social dysfunction. The book considers, among other things, the proper definition of freedom, the absence of the transcendent in contemporary culture, and America’ s growing economic and social inequality.

In the latest edition in our Conversations series, I ask Rusty some questions about his new book. Among other things, we discuss whether a Christian society is compatible with contemporary notions of pluralism, how Christianity might promote a more secure understanding of freedom and lessen the gap in social capital between rich and poor, and why Reno thinks President Obama personifies our new “post-Protestant WASP elite.”

Rusty, what inspired you to write this book?

Reno: Over the last few years I’ve become convinced that our Christian witness in public life has become too crimped, too focused on hot button issues. Defending innocent life remains vitally important, of course. We need to affirm truths about men, women, sex, and marriage, truths that are now taboos! Religious liberty is also crucial. But important as these issues may be, we’ve got to think more deeply about what’s at stake.

This sent me back to T.S. Eliot’s Idea of a Christian Society, lectures he gave in 1939 when Europe faced a dramatic cultural crisis. Nazism, Fascism, and Communism were ascendant. Many thought liberal democratic culture had no future. Eliot’s contribution—and this clarified my thinking—was to see that the crisis of Western civilization was spiritual. Fascism and Communism were pagan, organizing society around the gods of Nation, Race, Power, History, the Proletariat, and so forth. The answer could not be a liberalism understood as neutrality or tolerance. A Neutral Society, as he put it, could not stand on its own. A Pagan Society could only be countered by a Christian Society, not because Christianity is the only religion capable of sustaining justice and decency, but because Christianity has been the source of the West’s liberalism.

To my mind that remains true. Our paganism is soft and small, not hard and grandiose. We worship the hearth gods of health, wealth, and pleasure. But it’s a cruel paganism and in the book I detail the ways in which it’s especially hard on the poor and vulnerable. I want readers to see that a concern about traditional morality isn’t “moralistic.” It reflects a desire to defend the weak and vulnerable—a crucial biblical imperative.

In the book, you advocate recovering Christian influence in American culture—restoring a Christian society. Yet you recognize that your goals of increased solidarity, return to more limited government, and a renewed sense of the transcendent are consistent with other sorts of societies as well. Why not advocate the goals themselves, rather than a particular faith? Does the answer have to do with the historic role Christianity has in American society?

Reno:  It is true that we could have a Jewish society that embodied many of the qualities I advocate. Perhaps a Muslim or Buddhist society would as well, though I’m less sure. I even imagine that a Neoplatonic Society or Stoic Society would have at least some of the qualities I argue for in the book. But the fact of the matter is that Christianity has been and remains the overwhelmingly predominant “community of transcendence” in the West. Thus, if we want to escape the idols of health, wealth, and pleasure, it’s going to require the resurrection of the idea of a Christian society.

Your question raises the further point of whether we can isolate spiritual-cultural values from living “communities of transcendence.” Why not promote solidarity, argue for Read more

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Conversations: Christian Sahner

From 2008 to 2010, young scholar Christian Sahner (left) lived in Syria, studying Arabic. He learned a great deal about the country. particularly the relations among the different religious groups that made up Syrian society–including Christians, who accounted for perhaps 10% of the population. Last fall, he published an engaging account of his time in Syria, Among the Ruins: Syria Past and Present (Oxford). In the book, Sahner describes life in Syria before the Arab Spring. Notwithstanding a surface calm, he writes, sectarian tensions existed just below the surface.

This week, Sahner–who received a PhD in History this month from Princeton, and who will start a research fellowship at Cambridge in the fall–kindly answers some questions about his work. Our conversation covers topics such as the history of Christians in Syria, their experience under the Assad regime, the failure of the Arab Spring, and prospects for the future.

Christian, let’s start with some background. Your book is a reflection on the years you spent in Syria (2008-2010) and Lebanon (2011-2013). Why did you decide to live in these countries? What were you doing there?

Sahner: I first came to Syria for language study. Before the tumult of the Arab Spring, it was common wisdom among students that Cairo and Damascus were the best places to master Arabic. It was more or less dumb luck that led me to Syria and not to Egypt, and in hindsight, I’m immensely grateful the cards fell the way they did. By the beginning of 2011, Syria was no longer a safe place for an American student. Therefore, it was to Beirut that I relocated to carry on my language work and research. I’ve been returning to Lebanon ever since.

A main theme in your book is the power of sectarianism, which you define as the “activation of religious identity as one of the main principles of social and political life.” You believe this is a key fact of Syrian and Lebanese societies. What do you think explains it?

Sahner: Among the different countries of the Arab and Muslim world, Syria and Lebanon stand out for the terrific variety of peoples who live there, and always have. This includes not just Sunni Muslims, who form an absolute majority between the two countries, but also smaller Muslim sects, such as Shi‘is, Alawis, Isma‘ilis, and Druze, along with non-Muslims, including numerous Christian denominations, and until recently, large populations of Jews. The existence of religious diversity does not in and of itself entail the existence of sectarianism. And yet, I think it’s safe to say that sectarianism depends on and cannot exist without a sense of religious difference in a society. In the Levant, we face a world in which, over the course of the nineteenth and twentieth centuries, political systems emerged that explicitly assigned power on the basis of sect (as in Lebanon), or which saw informal imbalances of power arise among sects (as in Syria). Because these systems thrust religious identity into the center of political life in this way, they tended to stoke resentments between communities, and under certain circumstances, spark violence.

You have a great interest in the Christian communities of Syria. Many Westerners are very unfamiliar with these communities. Could you give us a brief description of them? Who are they, what are their numbers?

Sahner: We tend to think of Syria as a Muslim-majority country, but for centuries after the rise of Islam, its population was majority Christian. The roots of these Christian communities are very ancient. In fact, as the Acts of the Apostles tells us, it was in the Syrian city of Antioch that the followers of Jesus were first called “Christians.” Over the centuries, Syrian Christianity became splintered into different denominations, which were divided over Read more

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Hoover Institution Reprints Interview with Samuel Tadros

The Hoover Institution at Stanford has reprinted my interview with Samuel Tadros, author of Motherland Lost: The Egyptian and Coptic Quest for Modernity. In the interview, Tadros answers questions about the history of the Coptic Church, its important contributions to Christian thought and life, and its conduct during the Arab conquest and under Muslim rule. He describes how the liberalism of the twentieth century actually injured the Church and why Anwar Sadat, whom the West lionized, was a problem for Egypt’s Christians. Moving to the present day, he explains why the Arab Spring has been such a disaster for Copts and speaks about the Church’s prospects in Egypt and abroad.

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Conversations: Samuel Tadros

Last week, I reviewed a new book by the Hudson Institute’s Samuel Tadros, Motherland Lost: The Egyptian and Coptic Quest for Modernity. The book, a compelling read, explores the profound challenges that face the Coptic Church today. This week, Tadros (left) kindly answers some questions. He discusses the history of the Coptic Church, its important contributions to Christian thought and life, and its conduct during the Arab Conquest and under Muslim rule. He describes how the liberalism of the twentieth century actually injured the church and why Anwar Sadat, whom the West lionized, was a problem for Egypt’s Christians. Moving to the present day, he explains why the Arab Spring has been such a disaster for Copts, and talks about the church’s prospects in Egypt and abroad.

CLR Forum: Sam, let’s begin with some background. Although the Coptic Church has millions of faithful in Egypt—10% of the population, according to most estimates–and an increasing worldwide presence, most people in the West know very little about it. Who are the Copts? What are the salient features of Coptic Christianity?

Tadros: The lack of knowledge about the Coptic Church is regrettable yet quite understandable. The Coptic Church has been isolated from the rest of Christendom since 451 A.D. The word “Copt” is derived from the Greek word for “Egypt,” itself derived from the Pharaohnic word for it, so in a sense the word “Copt” means Egypt. The word, however, is specifically used to refer to Egyptians who refused to embrace Islam throughout the centuries and remained Christian, maintaining their ancient faith and rituals. Theologically, the Coptic Church belongs to a group of churches called Oriental Orthodox, which includes the Armenian, Ethiopian, Indian Orthodox and Syrian churches. Those churches rejected the decisions of the Council of Chalcedon regarding the nature of Christ.

CLR Forum: You discuss the important role the Coptic Church played in Christian history, especially in the early centuries. What do you think qualifies as the church’s most important contribution, historically? Would it be its defense of Trinitarian theology? Monasticism? 

Tadros: The three most important contributions of the Coptic Church can be summed up in the names of three men: Origen, Athanasius and Anthony. Origen, more than anyone else, attempted to reconcile Greek philosophy with Christian theology. The Catechetical School of Alexandria was instrumental in giving Christianity a ground to stand on intellectually against pagan attacks. Athanasius, as he himself declared, stood against the world. The contributions of other Church fathers, such as the Cappadocian Fathers, are important in the defense of Nicene Creed, but Athanasius carried the greatest burden. Cyril the Great follows in the same path with his anathema against Nestorius.  Finally, Anthony the Great, as the founder of monasticism, made an invaluable contribution to Christianity. Many of the early Western fathers such as Jerome traveled to Egypt to drink from the wisdom fountain of the desert fathers.

CLR Forum: Describe the Coptic Church in the world today—its relations with other Christians, for example. 

Tadros: 1954 is the year when the Coptic Church came out from its historical isolation by attending the World Council of Churches in Illinois. The late Bishop Samuel championed ecumenical relations and his efforts eventually led to the Coptic Church opening up to the rest of Christendom. The Joint Theological Declarations with Rome in 1973, and the Eastern Orthodox Churches in 1989-1990, have opened the doors to the dream of a true unity in Christ.

CLR Forum: You discuss the debate among historians about whether Copts initially welcomed the Arab Conquest of Egypt in the seventh century. The Copts would have had reasons, of course, as they were being persecuted by Byzantine Christians and might have seen the Arabs as deliverers. Could you describe this debate? Do you have a view?

Tadros: More than just among historians. The question is being contested in the public sphere, as a tool in shaping a current identity and narrative. For Egyptian nationalists, this claim would form the foundation of the national unity discourse–the eternal harmony of the two elements of the Egyptian nation, Muslims and Copts. Islamists would portray the story as Read more

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Conversations: Marc DeGirolami

This summer, Harvard University Press published The Tragedy of Religious Freedom, by our very own Marc DeGirolami (left), CLR’s Associate Director. In the book, Marc argues for a “tragic” understanding of religious freedom, one “that avoids the twin dangers of reliance on reductive and systematic justifications, on the one hand, and thoroughgoing skepticism about the possibility of theorizing, on the other.” This week, Marc answers some questions about his book. Among other things, he discusses the differences between “tragic” and “comic” legal theories; the value of history and tradition in judicial decision-making; and the inevitability of judicial discretion. He also explains why the Court got religious freedom wrong in Employment Division v. Smith and right in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. 

CLR Forum: Marc, explain what you mean by “comic” and “tragic” approaches to law generally. Why do you think religious freedom, in particular, should be addressed from a tragic perspective?

DeGirolami: The terms comic and tragic are ancient and have been used in classical, literary, and philosophical settings. I draw on some of these meanings in the book, but I use comic in the legal context to mean two things: (1) a preference for systematic ordering of the law by reducing legal values either to one or to a small set, in the belief that human society is progressively improved by that reduction; and (2) the marginalization of the loss of other values in the process of accomplishing (1). Tragic approaches to the law resist both of these points. A tragic approach to law says that the reasons we value a practice like religious freedom are plural and cannot be reduced. Each value struggles to avoid absorption and subordination by the others. The clash of values results both from the limits of human reasoning and from the conflict of human interests and aspirations. So in the face of conflict in law, a tragic approach affirms that the comic impulse to reduce legal values, and systematically to marginalize those that are subordinated, will exacerbate conflict and end up deforming, and perhaps eventually destroying, important social practices and institutions.

CLR Forum: You single out Employment Division v. Smith, Justice Scalia’s famous opinion in the peyote case, as an example of the misguided “comic” approach and argue that it should be gradually dismantled. What’s so wrong with Smith? And why not just overrule it? 

DeGirolami: Yes, I am critical of Smith and believe it to be an example of a comic approach. Smith reduced all possible values of free exercise under the Constitution to a single value: formal neutrality. A neutral rule that is applied generally no longer can violate the Free Exercise Clause of the Constitution after Smith, no matter how severely the rule burdens the religious free exercise of an individual or a group and no matter how insubstantial the government’s interest in enforcing the rule on a religious claimant. The Smith decision attempted to accomplish both of the comic points I listed above. It wanted to bring system Read more

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Conversations: Rodney Stark

Last week, we reviewed a recent book by Baylor University sociologist Rodney Stark, America’s Blessings. In the book, Stark (left) critiques public opinion surveys that purport to show the decline of religion in America and an increase in Americans without a religious affiliation, the so-called “Nones.” This week, Stark kindly agrees to answer some questions. He talks about church attendance in America, now at an all-time high; the surprisingly traditional beliefs of the Nones; and the reasons why the media and academy often ignore the socially beneficial effects of religion–lower crime rates, for example. He also explains why regular church goers may report greater satisfaction in their marriages, and talks about his future projects.

CLR Forum: Rod, we’ve heard a great deal in the past year about the rise of the “Nones.” According to reports, about 20% of Americans, the highest percentage ever, tell surveyors that they have no religious affiliation. Yet in America’s Blessings you note that 70% of Americans, also the highest percentage in our history, belong to religious congregations. What explains these two, apparently contradictory, developments?

Stark: First of all, few of the “Nones” aren’t religious.  Most of them even pray. What they mean when they say “None” is that they do not belong to a specific church. As for the increase in their numbers over the past 20 years, that probably is mostly caused by the decline in the percentage of Americans willing to take part in a survey. Those who do are very disproportionately the less affluent and less educated. Believe it or not, repeated studies going back to the 1940s always show that this is the group least likely to belong to a local church—the more educated Americans are the more religious segment (excluding PhDs). Meanwhile, partly because Americans move less often than they used to, and many more remain in their home towns as adults, membership in local churches has been rising—now estimated at 70 percent, the all-time high.

CLR Forum: You point out that the large majority of the Nones are rather religious, in their own way. How would you describe the religion of the religiously unaffiliated? What are its salient features?

Stark: The unaffiliated are religious in the traditional ways. They believe in God and in life after death–many believe in guardian angels. But, since they do not attend a local church (and probably never attended Sunday school) their faith is unsophisticated and often includes non-Christian supernaturalism—belief in ghosts and the like.

CLR Forum: You criticize the academy and media for ignoring many reliable surveys that suggest the socially beneficial aspects of religion, while focusing on unreliable surveys that show the anti-social impact of religion. Why is this, do you think? How do you think these academics would respond to your criticisms?

Stark: Surveys have demonstrated the irreligiousness of the media and of academics (especially social scientists and at the elite schools).  I am Read more

Posted on by Marc O. DeGirolami

Conversations: Paul Horwitz

I had the pleasure and good fortune of sitting down with my good friend, Paul Horwitz (Alabama), a Paul Horwitzcouple of  weeks ago to talk with him a little about his superb new book, First Amendment Institutions (2013), under the auspices of a Federalist Society program that considers interesting and important new books.  I will post the podcast of that interview when it is ready.  But Paul also generously agreed to answer some written questions about the book, which ranges over all manner of First Amendment subjects, including, of course law and religion, for our ‘Conversations’ feature here at CLR Forum.

Q: The book, as its title indicates, is concerned with examining First Amendment disputes from an institutional point of view.  You define institutions as organizations comprised of individuals bound together by some common purpose to achieve certain objectives.  Why are institutions particularly important phenomena to study when it comes to the First Amendment?  After all, when one thinks of personal expression or religious practice, one does not think immediately of institutions.  Indeed, the paradigmatic case of speech or religious exercise is, for many, not about institutional or organizational rights but about individual rights.

A: I don’t think they’re uniquely important phenomena to study when it First Amendment Institutionscomes to the First Amendment. But I absolutely believe that they’re important phenomena to study, for at least three reasons. 1) A good deal more individual speech is formed or influenced by or within those institutions than the paradigm case may acknowledge. 2) Much important speech or activity takes place within those institutions. 3) These institutions often play an important structural role in public discourse.

Q: One of the major methodological issues that you raise – applicable both to the First Amendment and, you suggest, to all of law – is the law’s tendency toward acontexualism.  You say, for example, that law is indifferent to real world context and is instead only interest in analysis according to concepts of its own making.  Judges think about the cases that come before them in distinctively legal categories.  Could you say more about this and how it pertains specifically to the sorts of issues that you tackle in FAI?  More than this, can you explain why it is an inapt way to think about such cases?

A: Of course, there are lots of reasons why it is not a bad thing for judges to think acontextuality. Most of them involve what we think of as rule of law values, while others have to do with reasons of the particular institutional competences of the judiciary. That said, like any reasoning device or habit of mind, acontextuality can end up obscuring or missing important facts, contexts, and details. The point of acontextuality, in part, is to think only about morally relevant differences or similarities between things; but too acontextual a view can end up missing some of those morally relevant distinctions, especially where First Amendment institutions are concerned.

Q: A different question about acontextuality.  Sometimes it seems that what you describe as the snare of acontextuality is just as much a debate about whether facts or doctrine should rule as it is a fight about which facts are the (morally) salient ones.  For example, in your discussion of Arkansas Educational Television Comm’n v. Forbes, you say that the 8th Circuit got hung up in trying to slot the commission as a public entity, and so it did not see that it was simply exercising its journalistic discretion like a private broadcaster might.  But one might recharacterize what the court did as valuing certain types of facts (the issue of the commission’s private status) MORE than other sorts of factors.  Even though the Supreme Court reversed, isn’t this really a fight about which facts are relevant, more than a fight about whether facts or legal categories matter.

A: This is a fair pushback, I think. But I suppose I would say that cases like Forbes were more about finding what the court considered legal categories than about considering facts or context as such. Certainly, however, there is a relationship between legal categories and morally relevant facts. The question is whether the fixation on legal categories can end up failing to see other kinds of relevant categories.

Q: A question about the relationship of institutionalism and acontextualism. Can one be a formalist about institutional categories?  It seems that Professor Fred Schauer’s approach, which is important for your own, espouses something like this position.  Is there a necessary connection between a focus on institutions and a contextual method?

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